1
Same-Sex Marriage and the Charge of Illiberality
Peter Brian Barry
Assistant Professor of Philosophy
Saginaw Valley State University
(draft: 6/10/09)
- Introduction
In an especially liberal moment, John Stuart Mill declares that “the burden of proof is supposed to be with those who are against liberty” and that “The a priori assumption is in favour of freedom,”[1] a declaration one contemporary liberal dubs the “Fundamental Liberal Principle.”[2] Since same-sex marriage [henceforth: SSM] prohibitions limit the liberty of citizens, the a priori assumption is that they violate liberalism’s commitment to liberty. But some have argued that it is the recognition of SSM—not its prohibition—that conflicts with liberalism’s commitments. For example, Jeff Jordan declares that:
Liberalism does not require legal recognition of same-sex marriage. In fact, it cannot, since legal recognition is incompatible with… principles of liberalism… The push for legal recognition of same-sex marriage, though often packaged as being motivated or required by liberal reasons, is in fact illiberal.[3]
Susan Shell argues that the “liberal sword cuts both ways,” insisting that:
American citizens should not have the sectarian beliefs of gay-marriage advocates imposed on them unwillingly… The requirement that homosexual attachments be publicly recognized as no different from, and equally necessary to society as, heterosexual attachments is a fundamentally illiberal demand.[4]
I refer to the thesis that recognition of SSM is illiberal as “The Charge.” If something like The Charge is correct, then recent attempts to prohibit SSM by public referendum, congressional action, and constitutional revision are perfectly legitimate on liberal grounds while recent state court decisions compelling its recognition are indefensible.[5]
Some proponents of SSM are bound to dismiss The Charge as implausible on its face and worry that taking it seriously amounts to lending credence to an untenable position.[6] However, something like The Charge has public currency[7] and least one familiar argument against recognizing SSM—that SSM should not be “forced down the throats” of its opponents—greatly resembles Shell’s protest against imposing on the beliefs of unwilling citizens. As a sympathetic liberal, I take The Charge seriously enough to consider and ultimately reject it. Ultimately, I contend that The Charge is simply misguided and that arguments for it either fail to find support in some liberal principle or else find support from some illiberal principle.
- Direct Arguments for The Charge
The “Basic Principle” of Liberalism
In response to the question “What does it mean for the government to treat its citizens as equals?” Ronald Dworkin famously answers that “government must be neutral on what might be called the questions of the good life.”[8] Arguably, this commitment to neutrality is captured in the “Basic Principle” of liberalism:
The Basic Principle of Liberalism (BP): a state “should not promote or justify its actions by appeal to controversial conceptions of the good [life]”[9]
Some arguments against SSM prohibitions appeal directly to (BP), claiming that there is no way to justify denying access to the rights and benefits and protections associated with civil marriage to same-sex couples without appealing to controversial conceptions of the good (such as the moral superiority of heterosexuality or the procreative family).[10] However, liberal philosophers should not take it for granted that SSM prohibitions must violate liberal neutrality. Indeed, some arguments for the Charge appeal directly to liberalism’s commitment to neutrality; I shall refer to arguments that appeal directly to this commitment as “direct arguments.” One direct argument appeals to (BP) itself.
The Basic Argument
As noted above, Jordan asserts The Charge. To that end, Jordan distinguishes three different “models” of marriage. The first model is the “Sacramental” model. This model implies, inter alia, that God instituted marriage as a lifelong relationship between one man and one woman.[11] Such a model implies that SSM, as well as various polygamous relationships, are not really marriages since marriage requires a monogamous opposite sex couple. However, the Sacramental model is “ontologically thick”—that is, it involves substantial metaphysical assumptions about the existence of God and natural law—and, apparently, (BP) “requires that the state forswear ontologically thick models and restrict itself to models that are ontologically thin.”[12] So, by Jordan’s own lights, the Sacramental model is a liberal non-starter.
Two other models of marriage are available, however: the Communional and the Transactional model. The Communional model implies, inter alia, that:
There is a natural or biological teleology apparent between the male and the female—“a two-in-one-flesh Communion of persons that is consummated and actualized by acts that are reproductive in type, whether or not they are reproductive in effect…”[13]
The Communional model is supposed to be ontologically “thin”—that is, free from substantial metaphysical assumptions about God and natural law, for example. The Transactional model is similarly ontologically thin, implying only that marriage is a transaction regulated by the state that is beneficial to the persons involved.[14]
With these models distinguished, Jordan’s “Basic Argument” comes quickly:
For the state to recognize same-sex marriage, then, requires an appeal to a controversial view of marriage as a justification for that state action. By recognizing same-sex marriage the state would, in effect, declare that the Transactional model is correct, and that the Communional model is incorrect. In this way the state would be violating its desirable neutrality regarding controversial views of the nature of marriage.[15]
Presumably, the idea is that models of marriage are tied up with conceptions of the good life such that if the state declares that one model of marriage is (in)correct it ipso facto answers questions about the good life, thereby violating (BP). If so, the Basic Argument can be reconstructed thusly:
1)If the state fails to remain neutral among conceptions of the good life, then it is illiberal
2)If the state declares that one eligible model of marriage is correct or that another eligible model is incorrect, then the state fails to remain neutral among conceptions of the good life
3)If the state recognizes SSM then it declares that the Transactional model is correct and that the Communional model is incorrect
4)Therefore, if the state recognizes SSM, it is illiberal
1) is supposed to reflect (BP) and be plausible to any liberal. 2) is supposed to capture Jordan’s assertion that a state violates its “desirable neutrality” by declaring that some model of marriage is (in)correct. 3) reflects the fact that while the Transactional model allows that SSM is possible, the Communional model does not since the two-in-one-flesh union essential to marriage cannot be realized by same-sex couples, such that recognition of SSM implies that the Communional model of marriage is incorrect by implication.[16]
There is much to be said against the Basic Argument, but note initially that it is subject to a fatal dilemma. Here is the first horn. By parity of reasoning, the liberal state must forswear any ontologically thick model of marriage if it forswears the Sacramental model. Crucial to the Communional model is the two-in-one-flesh union, talk of which is pervasive among the natural lawyers and theistically inclined philosophers, some of whom suppose, that “reproductive-type acts unite a male and female as a single organism, viz., make them ‘two-in-one-flesh.’”[17] Many philosophers outside of those traditions struggle to understand how two different people could literally become a new organism[18] or ridicule the very idea.[19] If the two-in-one-flesh union has a home only in a natural law or theistic setting, the Communional model is not an eligible one since it requires substantial metaphysical assumptions.
Still, whatever others mean when they refer to a two-in-one-flesh union, Jordan suggests that the Communional model can survive in a naturalistic setting.[20] Perhaps it is a mistake to suppose that reproductive-type sex acts result in the creation of an altogether new organism akin to an animal or a person; perhaps they result in a new organism only in the way that dancing with someone does—a dancing duo. But now insisting that this naturalistically palatable two-in-one-flesh union is essential to civil marriage appears to be an ad hoc stipulation; at least, it is unclear why it or the potential for it is necessary for civil marriage. So, either the Communional model is ontologically thick or it is implausible and, in either case, not an eligible model of marriage. Thus, even if 1)-3) of the Basic Argument are true, it does not follow that by recognizing SSM a state fails to be neutral among eligible models of marriage.
Two Kinds of Liberal Neutrality
Note that (BP) is decomposable into two distinct theses about liberal neutrality that are best kept separate. Here is one thesis:
Justificatory Neutrality (JN): a liberal state is precluded from justifying some policy on the grounds that one conception of the good life is superior to another.
So understood, the liberal commitment to neutrality constrains the sort of reasons that a liberal state can permissibly offer in defense of some policy. Presumably, (JN) precludes justifying permitting only Christian symbols in public parks on the grounds that Christianity is the superior faith and from forbidding racist hate speech on the grounds that the racist’s moral values are impoverished. (JN) is bound to be popular among liberals who suppose that matters of public policy must in principle be justifiable to all citizens in terms that they would or could reasonably accept, precisely because a justification that could be accepted by all does not imply that other conceptions of the good are inferior.[21] Still, another conception of liberal neutrality should be considered:
Effectual Neutrality (EN): a liberal state is precluded from promoting one conception of the good life more than another or at least to cancel or compensate for any uniquely favorable effects thereby granted to that conception.[22]
Generally, it is individual persons who endorse a conception of the good life that can have their interests promoted (or advanced or frustrated or set back). If a state prohibits the possession of hunting rifles but not other long-barreled firearms, it would be strained to insist that some conception of the good life has been frustrated and not that sportsmen whose conception of the good life involves possessing hunting rifles have had their interests frustrated. Surely if prohibiting only hunting rifles conflicts with (EN), it is because a state treats some citizens unfairly. Thus, I understand (EN) as shorthand for the more complicated thesis that a liberal state should not promote the interests of some citizens more than others without canceling or compensating for any uniquely favorable effects, and that talk of “promoting conceptions of the good life” is convenient shorthand for the more complicated thesis suggested here.
I take it, then, that an argument that recognition of SSM is illiberal because its recognition violates liberalism’s commitment to neutrality assumes either (JN) or (EN). But it is difficult to see how any argument for The Charge that appeals to either (JN) or (EN) will be successful. Or so I argue.
SSM, Illiberality, and (JN)
Consider (JN) first. If recognizing SSM violates (JN), it must be that any state that recognizes SSM is justifying that policy on the grounds that some conception of the good life tied up with SSM is superior to another. So understood, a liberal state that declares that SSM is legally permissible is performing some illiberal illocutionary act—in recognizing SSM, it violates (JN).[23] This argumentative strategy is taken up, for example, by philosopher-judge Richard Posner who worries that “permitting homosexual marriage would be widely interpreted as placing a stamp of approval on homosexuality”[24] and by Francis Beckwith who complains that states who recognize SSM are “instructing its citizens on what they ought to believe is good, true, and the beautiful.”[25] Neither argument is likely to be successful.
Beckwith’s argument fails because of an ambiguity with respect to his claim that recognizing SSM involves “instructing.” In its most conventional sense, instructing someone about A involves explaining how to go about A-ing. But it is difficult to see what is illiberal about this: a state that explains how to file for unemployment or request a passport hardly does anything illiberal. But perhaps Beckwith objection is that recognizing SSM involves instructing, not how, but that something is the case—that in recognizing SSM, the state is instructing that SSM is “good, true, and beautiful.” But it is not plausible to suppose that, in recognizing SSM, the state is instructing in this second sense since is not generally the case that in recognizing some liberty, the state communicates that something is good, true, or beautiful. Suppose that a state declares, for the first time, that citizens do have the right to engage in hate speech. In recognizing a right to hate speech, the state need not instruct its citizenry that hate speech is good, true, or beautiful; a judge that declares that hate speech laws are unconstitutional may simultaneously decry hate speech and express her hope that no one ever engages in it.
My response to the second way of understanding Beckwith’s complaint suffices as a response to Posner as well and to any argument that recognizing SSM is illiberal based on (JN). Even if it is the case that recognizing some right would otherwise amount to performing some illocutionary act, a state can cancel any implication that it approves or favors or endorses SSM at the same time thus ensuring that in recognizing SSM it is not issuing a “stamp of approval” or any such thing. If it is generally the case that speakers can take steps to ensure that they do not perform some illocutionary act, then there is no necessary connection between recognizing SSM and violating (JN).
Another point. It is fairly common to hear that proponents of SSM are attempting to “redefine” the meaning of marriage in violation of significant cultural and historical traditions. More likely, however, proponents of SSM are not redefining anything; rather, proponents and opponents of SSM simply endorse different analyses of the concept of marriage. If I understand, Jordan’s “models” of marriage are analyses of the concept of marriage. It is not generally true that providing an analysis of the concept of C amounts to justifying C; settling on an analysis of the concept of a poison does not require supposing that anyone should consume it. If it is not generally the case that appealing to some conception of the good life is necessary to provide an analysis of C, it is unclear why proponents of SSM must be doing anything illiberal in violation of (JN). Jordan stipulates that marriage is good for society on the Communional model and good for those married on the Transactional model.[26] But there is no inconsistency in supposing that a thing is good in some respect while denying it is part of the good life: a misanthropic Satan-worshipper might agree that marriage is a god-given institution that benefits society while insisting that marriage should be avoided for those very reasons. As such, it is simply unclear why recognition of SSM must violate (JN).
SSM, Illiberality, and (EN)
Consider, then, arguments for The Charge that rely on (EN). If recognizing SSM violates (EN), it must be that any state that recognizes SSM is illicitly promoting that policy. But like arguments that invoke (JN), arguments that invoke (EN) are also bound to fail. Recognition of SSM, admittedly, makes some people better off than they are now but that does not settle whether recognizing SSM violates (EN).
Recall that (EN) does not preclude promoting a conception of the good life, only promoting a conception of the good life absent canceling or compensating for uniquely favorable effects. A state that recognizes SSM could cancel for uniquely favorable effects by imposing undesirable obligations and responsibilities on married same-sex partners or deny them certain desirable benefits. For example, a state could both recognize SSM and impose a unique duty of care on married same-sex partners and increase the costs of marriage for same-sex couples, perhaps requiring them to come to one another’s rescue no matter what or to defray the costs of their partner’s medical care; it could mandate special counseling or therapy or a waiting period for such couples prior to issuing a marriage license; it could demand community service in some form for the continued recognition of their marriage; it could tax them at a higher rate than opposite-sex married couples, and so forth. Alternatively, a state could both recognize SSM and deny married same-sex couples certain benefits of civil marriage. For example, a state could deny married same-sex partners some of the tax benefits associated with civil marriage or it could refuse to extend them privileges associated with child-care. Either strategy would cancel for the favorable effects of SSM. Yet another strategy involves compensating those who do not benefit from the recognition of SSM, perhaps by precluding them from certain responsibilities or by providing them with certain benefits. I doubt that many, if any, of these measures would be acceptable to proponents of SSM, but that is besides the point for present purposes. The point is simply that there is no necessary connection between recognizing SSM and illicitly favoring some conception of the good life, such that arguments for The Charge based on (EN) are bound to fail.